Scotten v. Sutter

Cooley, C. J.

I. The Superior Court having held that the contract sued upon was within the statute of frauds, but having also submitted the case to the jury under instructions which permitted them to find that the cigars had been *530 accepted, and the jury having found for the plaintiffs accordingly, it is now urged on behalf of the plaintiffs, that whatever errors the court may have committed in its instructions are immaterial, because in fact the contract was nob within the statute of frauds, and this court must so find from the record. In pressing this view upon our attention, counsel overlook the fact that the contract is to be arrived at as a deduction from oral evidence; and that this court is not at liberty to draw inferences of fact in cases at law, but must take the findings sent up from the court below as conclusive. This is always the case except where the evidence is all sent up on an exception that the finding has no evidence to support it. But as the plaintiffs are not the parties alleging error, they are not in position to raise any such question here, and if they were, it would be without avail as the defendant’s evidence went to a denidi of the contract the plaintiffs relied upon.

II. The principal question on this record is whether the judge was correct in leaving it to the jury to find an acceptance of the cigars from what took place at the time the witness Compt tools: to the place of business of defendants the 4000 cigars in a hand cart. From the evidence of this witness it appears that defendants did not take the cigars at that time, but Mr. Lowry, one of the defendants, told him he would take them as soon as he could; that defendants were then taking stock and had no time, but as soon as they would need them, would send for them right away; whereupon the witness took back the cigars to the plaintiffs. This transaction, it is claimed, was not only a clear manifestation of an intent on the part of defendants to take the 4000 cigars, but to take all the cigars they had ordered; and was sufficient within the former decisions of this court to pass the title. Whitcomb v. Whitney, 24 Mich., 486 ; First National Bank of Marquette v. Crowley, Id., 492 . It is to be observed of this evidence that it does not indicate an understanding that the goods were then accepted and taken, and merely left in plaintiff’s hands for convenience, but rather a promise to send for thorn as the *531 defendants should need them. Now if the first promise was invalid because not in writing, the second promise, which was also not in writing, could be no better; it would be invalid on the same grounds precisely as the first. It is also to be observed of Compt’s evidence, that it does not appear from it that he said any thing whatever about delivering the 4000 cigars on any contract; he only takes over that number of cigars and offers them to the defendants, who assign a reason for not then taking them, but are as silent as Compt is about any bargain for more. It would seem, therefore, that if what was done and said was equivalent to an acceptance of any cigars, it could only extend to the 4000 then offered; and the proofs of the plaintiffs show that more than this number were subsequently received by the defendants and paid for. It may therefore well be said by the defendants that they fully complied with and carried out any understanding which could justly be implied from what took place when Compt came to their place of business as stated.

The cases which are cited in support of the rulings below do not seem to us to warrant the deductions we ai'e asked to make from them. Elmore v. Stone, 1 Taunt., 458, was a sale of horses by a livery stable keeper to a person who ended the negotiations by saying that “the horses were his but that as he had neither servant nor stable, the plaintiff must keep them at livery for him.” There the property was fully identified, designated and set apart, and the vendor, it is evident, became in respect to them a bailee from the moment the transaction took place, and entitled as such to charge for services and expenses. Marvin v. Wallis, 6 El. & Bl., 726, does not differ from that case in any essential feature. Turley v. Bates, 2 H. & C., 200, was a sale of a heap of fire clay by the ton, and the question in dispute was, whether the title had passed before the clay was weighed out. It was held that it might if such was the intent of the parties. This case was cited' with approval in Lingham v. Eggleston, 27 Mich., 324, 329 , with several others supporting the same doctrine, including Young v. Matthews, L. R. 2 C. P., 127, on which the plaintiffs also *532 rely, arid which recognizes the same doctrine but goes im farther. The point of these cases is that actual delivery is not absolutely essential' to pass the title to goods sold, and it may pass even though something still remains to be done to determine the price to be paid, if such is the clear understanding of the parties. Rohde v. Thwaites, 6 B. & C., 388, is more like the present than is any of the other cases. The bargain there was for twenty hogsheads of sugar to be taken from a large quantity in bulk. Four hogsheads were filled up, delivered and accepted; the other sixteen were then filled up by the vendor, and the vendee notified and requested to take them aAvay, which he said he would do as soon as he could. It Avas held that the title to all of them had passed. 'The difference betAveen that case and the present is vital; for Avhile in that case the vendee recognized what Avas set apart for him as being his under his purchase, in this case there is no pretense of such a recognition, and had the plaintiffs sold off at any time all their stock of cigars, there Avould not have been, so far as AYe can see, the least plausibility in any claim on the part of the defendants that they might follow and reclaim any of them as their property, had they seen fit to make such a claim. But unless the title passed so as to take from the plaintiffs the authority to sell, it is manifest that this action cannot he supported. Goddard v. Binney, 115 Mass., 450 , on which the plaintiffs rely with some confidence, lays down no doctrine important to this case which differs at all from the views of this court as expressed in Lingham v. Eggleston, supra, and in Hatch v. Fowler, 28 Mich., 205, and Wilkinson v. Holiday, 33 Mich., 386 , which Holiday it. Neither these cases nor the one in Massachusetts afford as we think any support to the rulings below.

The judgment must be reversed Avith costs, and a nerv trial ordered.

Graves, and Campbell JJ., concurred. Marston, J., did not sit in this case.